Obama’s War of Attrition

Categories: Immigration Lawyer Blog San Diego

In Artesia New Mexico, hours from the nearest metropolitan area, Immigration and Customs Enforcement (“ICE”) has set up a prison solely for the purposes of detaining children and their mothers while they await determination of their claims for refugee status in the US.  ICE’s policy is to detain all of the children and their mothers regardless of their individual circumstances.  This policy is a violation of our obligations under the 1951 Refugee Convention.  But even more disturbing than the detention itself is the means and purpose of the detention.  You see, the Obama administration is waging a war of attrition against children.  Children and their mothers who are fleeing violence in Central America. Children and their mothers who have fled gangs and domestic abuse. The means this war is being waged is among the most heinous.  It is being waged through the deprivation of adequate food, medical care, and due process.  

Children are wasting away.  The food is poorly prepared and the hundreds of mothers here all complain that everything is undercooked, including the chicken their children won’t eat because it’s nearly raw.  Many children have lost large percentages of their body weight, upward of 25%. Nearly every child there has been sick repeatedly with fever and diarrhea. The medical services provided tell them to just make sure to give the child plenty of water.  No other treatment is prescribed even for the child who has had diarrhea for two and a half months straight.  A 16 month old who developed pneumonia and was hospitalized now no longer eats solid food and has stopped walking.  Prison officials have refused to give the mother baby food because they say he’s too old. He’s returned to breast feeding. When his case was reviewed for release by an immigration judge she refused to release the family on bond.  Only after repeated pleas by the pro bono attorneys representing the family did they actually obtain release.  

Obama has said that these children and their mothers will be deported, that they are economic migrants and not actually refugees. When the children and their mothers first arrived here the government thought that they would simply deport them.  They gave them sham credible fear interviews. Credible fear interviews are intended to be a preliminary screening to see if there’s even a realistic chance that the person could eventually qualify for asylum. The standard was heightened and many of the women failed to pass the interviews. Around the country immigration attorneys caught wind of what was happening though.  They came to this remote detention facility and demanded the cases be reviewed, and on Thursday September 4th a woman who had been initially told that there was no realistic chance she could qualify for asylum was granted asylum by an immigration judge.  The judge went so far as to say that the woman was a “textbook case.” A textbook case for asylum, and yet she had been initially denied and then held with her two children in this detention center for two months.

That win and the ones that have followed show that when these cases are actually heard on the merits of the claim they are successful, that these children and their mothers are bona fide refugees. But due process requires that the women have access to lawyers. Not lawyers that the government pays for like in criminal proceedings but just that they be provided the right to have a lawyer.  There are no immigration lawyers in the town Obama decided to put his prison for children and their mothers in.  There are no immigration lawyers the next town over. To get to this town good hearted people must fly in from around the country and then drive an additional minimum of 3 hours. They must leave their spouses and children and their own law practices and means of financial support.  They must spend thousands of dollars of their own money to come here and represent these refugees.  This is not adequate access.

We’ve seen our government deny groups asylum status previously. We’ve actually seen it with refugees from Central America.  The same countries that are now again being told that they aren’t really refugees, that they aren’t deserving of our protection. In the 80s the US government would deny claims of abuse by the fascist governments of El Salvador and Guatemala.  People were wrongfully deported and eventually a lawsuit was brought and won on behalf of those refugees.   Now it’s happening again.  Same goal, different means.  

Today I, along with some of my colleagues, sent a letter to President Obama asking him to restore the previous policy that allowed ICE to look at the individual circumstances of the child before refusing to release them.  Here is an excerpt of recommendations:

We request that you direct ICE to correct their course to handle the cases of these children and these mothers in a humane way by doing the following:

  1. Parole the children and their mothers who have passed their credible fear interviews, have no criminal record, and have a place to live in the US.  
  • Under US law the default detention policy for a person who passes her credible fear interview, has a place to live, and isn’t a danger to society is that they be released on their own recognizance.  This comes from the case of: Matter of Drysdale, 20 I&N Dec. 815, 817 (BIA 1994).
  • ICE has the power to do this and it is regularly done in the immigration world. EOIR immigration judges can also do this.
  • ICE should stop asserting that the children and their mothers are a national security risk.

If the children and mothers who meet these qualifications are paroled you will have fewer detainees to find housing and medical care for. 

  1. Review every denial of a Credible Fear Interview (“CFI”) issued so far that hasn’t already been overturned, including those of children who have already been deported. The asylum officers conducting the credible fear interviews are denying “textbook cases” of asylees.  This means many of the denials are either due to ignorance of the law or political pressure to deny CFI’s.  The evidence is clear that the message being sent out is that these children are economic migrants not refugees and that message has trickled down.  Jeh Johnson must send a clear message inside his department that asylum applicants will receive due process.
  1. Close Artesia and relocate the remaining detainees to housing in existing facilities closer to metropolitan areas while they await processing. Attorneys should not be required to spend 12 hours of travel time and thousands of their own dollars to provide legal services to refugees. The conditions of detention must be humane. Children should be given toys, education, adequate medical care and culturally appropriate or at least edible food. If the US government is unable to provide facilities that provide access to counsel, sanitary conditions, education, medical care and food then it has no business detaining children. The immigration community understands the government’s predicament that they are having difficulty providing these but that does not mean the default position is simply to detain the children in substandard facilities. The default position should be to release them. 

We ask you: what does it say about our country when we hold asylum seekers in conditions so deplorable that they just give up? What does it say when our country uses children to send a message that people seeking asylum will be treated so poorly that they may as well not come? These conditions must end NOW.  

To know more about the abuses going on in Artesia, NM follow this link to hear my radio interview with Ari Rabin-Havt: Immigration attorney reports unnecessary cruelty towards women and children at border detention center or read the Huffington Post coverage here: Immigrant Mothers Face ‘Unnecessary Cruelty’ At Detention Facility, Lawyer Says.